Karlene G., Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Oct 20, 2017

0120150646 (E.E.O.C. Oct. 20, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Karlene G.,
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.

Appeal No. 0120150646

Agency No. 1E-853-0002-14

Hearing No. 540-2015-00020X

DISMISSAL OF APPEAL

By Notice of Appeal postmarked November 29, 2014, Complainant filed an appeal with the
Equal Employment Opportunity Commission (EEOC or Commission) from the August 18, 2014
final Agency decision (FAD) concerning her EEO complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. § 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq.

In response to Complainant’s appeal, the Agency argued that Complainant’s appeal was
untimely filed as the FAD was delivered to Complainant’s address of record and to her
representative on August 21, 2014, but Complainant did not file her appeal until November 29,
2014. The record does not contain a copy of the certified mail return receipt cards indicating
when Complainant and her representative received the FAD. However, sometime in October
2014 (and again on November 25, 2014), Complainant submitted an untimely request for a
hearing (Hearing No. 540-2015-00020X) to the Hearings Unit of the Commission’s Phoenix
District Office. Therein, Complainant expressed that she was dissatisfied with the Agency’s
decision and acknowledged that they “missed the 30-day [deadline]” because her representative

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.

0120150646

2
experienced impaired vision due to a medical condition for two and a half months. Further,
Complainant explained that her representative’s name was misspelled on the envelope and he
refused to open it due to his fear of “mail fraud.” This submission was forwarded by the Agency
to the Commission. Complainant made no arguments regarding the timeliness of her appeal in
her submissions to the Commission.

A review of the FAD reveals that the Agency properly advised Complainant and her
representative that Complainant had thirty (30) calendar days after receipt of its final decision to
file her appeal with the Commission. The FAD was issued on August 18, 2014, yet Complainant
did not file her appeal with the Commission until November 29, 2014, well beyond the 30-day
limitation period. The Commission finds that Complainant has not offered adequate justification
for an extension of the applicable time limit for filing her appeal. As to Complainant’s
statements regarding her representative, the Commission emphasizes that a complainant shall at
all times be responsible for proceeding with the complaint whether or not she has designated a
representative. 29 C.F.R. § 1614.605(e). In cases involving physical or mental health
difficulties, an extension is warranted only where an individual is so incapacitated by her
condition that she is unable to meet the regulatory time limits. See Davis v. U.S. Postal Serv.,
EEOC Request No. 05980475 (Aug. 6, 1998); Crear v. U.S. Postal Serv., EEOC Request No.
05920700 (Oct. 29, 1992). The Commission finds that Complainant has not demonstrated that
she or her representative was so incapacitated by a medical condition that she was unable to file
her appeal in a timely manner.

CONCLUSION

Accordingly, Complainant's November 29, 2014 appeal is hereby DISMISSED. See 29 C.F.R. §
1614.403(c).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact
or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
0120150646

3
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil action,
you must name as the defendant in the complaint the person who is the official Agency head or
department head, identifying that person by his or her full name and official title. Failure to do
so may result in the dismissal of your case in court. “Agency” or “department” means the
national organization, and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil action will terminate the
administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission.

0120150646

4
The court has the sole discretion to grant or deny these types of requests. Such requests do not
alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right
to File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

October 20, 2017
Date